The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 366 of 2013 Akhilesh Singh ..... … Petitioner The State of Jharkhand Versus -------- .…. … Opposite Party CORAM : HON’BLE MR. JUSTICE H. C. MISHRA For the Petitioner For the State ------ : : ------ Mr. K. N. Choubey, Sr. Advocate Mr. D. K. Chakraverty, Advocate Mr. Amresh Kumar, A.P.P. 6/ 21.06.2013 Heard learned senior counsel for the petitioner and learned A.P.P. for the State. 2. The petitioner is aggrieved by the order dated 8.8.2012 passed by the learned Additional Sessions Judge-I, Jamshedpur, in Sessions Trial No. 76A of 2009, whereby, the application filed by the petitioner under Section 227 of the Cr.P.C., for discharge, has been rejected by the Court below. 3. The petitioner has been made accused in Golmuri P.S. Case No. 279 of 2008 corresponding to G.R. No.2507 of 2008, for the offences under Sections 25(1-B)(a), 26 and 35 of the Arms Act. It appears from the impugned order that after investigation, charge sheet has been submitted and cognizance has been taken against the petitioner and the co-accused persons for the offences under Sections 25(1-A), 25(1-AA), 25(1-B) (a), 25(1-B) (c), 26 and 35 of the Arms Act. It also appears that the co-accused persons were facing trial in S.T. No. 76 of 2009, but as the petitioner was absconding and he was subsequently apprehended and put to trial, his trial was split up from S.T. No. 76 of 2009 and presently he is facing trial in S.T. No. 76A of 2009. 4.
Legal Reasoning
The facts of the case lie in a short compass. The petitioner was also made accused in Golmuri (Barma Mines) P.S. Case No. 272 of 2008 for the alleged offences under Sections 452, 324, 326, 307 / 34 / 120(B) of the Indian Penal Code and Section 27 of the Arms Act, which was being investigated by the police. In course of investigation of the said case, on 4.11.2008, the police was informed that the co-accused Bittu Mishra was apprehended in connection with the said case, whereupon the police party reached there and recorded his confessional statement, who admitted his guilt in Golmuri (Berma Mines) P.S. Case No. 272 of 2008, and also disclosed the names of other co-accused persons. He also disclosed that one of his close associates in the said case, Manoj Kumar Singh @ Bhola Singh had gone towards Dimna Chowk and the police apprehended the said co-accused, Manoj Kumar Singh @ Bhola Singh, from Dimna Chowk. Confessional statement of the said co-accused was also 2 recorded and he disclosed that he was working in the gang of the petitioner, who was a convicted criminal and also disclosed about the involvements of other co-accused persons in several cases of shoot out in the town. It was also informed that one co-accused Bunty Jaiswal @ Dablu was living in a rented house from where the weapons may also be recovered. Upon the said information, the police raided the rented house of Bunty Jaiswal @ Dablu, along with co-accused Bhola Singh and on identification made by Bhola Singh, accused Bunty Jaiswal @ Dablu was apprehended by the police and he also accepted his guilt and disclosed that he was living in the rented house belonging to one Sher Singh. He also disclosed to be working for the petitioner, and on the direction of the petitioner several offences of murder, shooting by fire-arms etc., were committed in the town and he also disclosed the names of other members of the gang. He also disclosed that the weapons used in the said offences were kept in his room, whereupon the room was raided by the police, from where large number of prohibited arms, including carbine, and ammunitions, as detailed in the FIR, apart from the other incriminating articles, were recovered. The apprehended co-accused Bunty Jaiswal @ Dablu also disclosed that those weapons had been kept there by Lallu Singh @ Manoranjan Singh, who had procured them from the petitioner Akhilesh Singh, and that those weapons were used for committing the various offences in the town. The seizure of the firearms and ammunitions were made and the FIR was lodged, in which, the petitioner has also been made accused on the basis of confessional statements made by the apprehended co-accused persons. After investigation, the police submitted the charge-sheet against the accused persons, including the petitioner, for the offences under Sections 25(1-A), 25(1-AA), 25(1-B) (a), 25(1-B) (c), 26 and 35 of the Arms Act, for which cognizance was taken and the case was committed to the Court of Session. 5. The impugned order shows that the witnesses have already been examined in S.T. No. 76 of 2009, and the same was at the verge of disposal. The petitioner was put to trail in S.T. No. 76A of 2009. The petitioner filed his application for discharge under Section 227 of the Cr.P.C., which was rejected by the Court below. The Court below has taken into consideration the confessional statement of the co-accused Bunty Jaiswal, as also his statement recorded under Section 164 of the Cr.P.C., and came to the conclusion that the petitioner Akhilesh Singh had full knowledge regarding the arms kept in the house of co-accused Bunty Jaiswal and there were materials to show that the petitioner had supplied those arms and they were brought from his possession 3 by the co-accused Lallu Singh. Though the Court below also found that the petitioner was not present at the time of recovery of the arms, and that the room from where the recovery was made, did not belong to the petitioner, but taking into consideration Section 35 of the Arms Act, the Court below held that bare perusal of this provision clearly indicated that a person who is aware of existence of arms and ammunition in the premises, unless contrary is proved, is liable for the offences under the Arms Act and accordingly, there are sufficient materials against the petitioner also for framing the charge, and has rejected the application filed by the petitioner. 6. Learned senior counsel appearing for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as, the statement of the co-accused recorded under Section 313 of the Cr.P.C., in the connected trial, i.e., S.T. No. 76 of 2009, as also the deposition of the defence witness in the said trial would show that the arms and ammunitions seized in connection with this case were actually seized by the police from the extremists, but the petitioner and other co-accused persons have been falsely implicated in this case. However, in my considered view, taking this submission of the learned senior counsel into consideration shall amount to entering the arena of disputed questions, which cannot be done at this stage. It would be appropriate to confine the materials available against the petitioner on the admitted facts of this case, in order to decide the legality or otherwise of the impugned order passed by the Court below. 7. Learned senior counsel has further submitted that according to the prosecution case, only material against the petitioner is that the apprehended co-accused confessed that fire arms and ammunitions recovered from the rented house of the co-accused Banty Jaiswal were brought and kept there by co-accused Lallu Singh @ Manoranjan Singh, who had procured them from the petitioner. Learned counsel has submitted that there is nothing in the entire prosecution case that the said premises, from where the recovery was made, was
Legal Reasoning
ever in the joint possession or joint control of the petitioner. Learned counsel has accordingly, submitted that in view of the fact that the petitioner was not apprehended at the spot and there was no recovery from the petitioner, as also in view of the fact that it is not the case of the prosecution that the premises from where the recovery of the arms and ammunitions has been made, was ever in joint possession or joint control of the petitioner, no offence can be said to be made out against the petitioner under the Arms Act. It is submitted that Sections 25 and 26 of the Arms Act relate only to the person, from whom recovery is 4 made, but Section 35 of the Arms Act makes even such person liable, who is not apprehended along with arms and ammunitions, but it is found that such person was also in the joint occupation or control of the premises, place or vehicle from where the recovery is made, subject to condition that such person was aware of the existence of the arms and ammunitions in the premises, place or vehicle. Learned senior counsel for the petitioner submitted that a plain reading of Section 35 of the Arms Act would show that there are two essential ingredients for making a person liable with the help of this section; firstly the person must be found to be in the joint occupation or control over the premises, vehicle or the place, from where the recovery of arms or ammunition is made; and secondly, he should be aware of the existence of such arms or ammunitions in the said premises, place or vehicle. 8. Learned senior counsel for the petitioner has submitted that in the present case, the very first ingredient of Section 35 of the Arms Act is missing. There is nothing on the record, nor even the allegation, to show that the petitioner was in joint occupation or in joint control over the premises from where the recovery of arms and ammunitions was made. As such, no offence under the Arms Act can be said to be made out against the petitioner. In this connection, learned counsel has placed reliance upon a decision of the Apex Court in Pabitar Singh Vs. the State of Bihar, reported in AIR 1972 SC 1899, wherein where, the recovery of a gun was made from a room of a quarter in the joint possession of two persons. One person was apprehended from the quarter and was put to trial and convicted for the offences under Sections 25 and 26 of the Arms Act with the help of Section 35 of the said Act. In the backdrop of the said facts, the Supreme Court has laid down the law that since the gun was recovered from a room of the quarter which was in joint possession of two persons and one of them was not present at the time of raid, the mere presence of other person in the quarter was not sufficient to make him guilty of the offence unless the court could come to the conclusion that there was reason to believe that he was aware of the existence of the gun in that room. It was held in that case that since the prosecution failed to prove that he was in sole occupation of that room at the time of raid and gun was concealed in such a manner that it was not visible to the naked eyes, it could not be said that the person present in the room was aware of the existence of the gun. Placing reliance upon the said decision, learned senior counsel submitted that in the present case, the question of the petitioner’s becoming aware of the existence of the arms and ammunitions, is immaterial, in view of the fact that it is not the case of the 5 prosecution that the said premises was ever in joint possession or joint control of the petitioner also. 9. Learned senior counsel has also taken a point that Section 37 of the Arms Act prescribes that all arrests and searches made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure. It is submitted by learned counsel that the search of the premises was made without any warrant by the Magistrate and accordingly, it was against the procedure prescribed under the Cr.P.C., and as such, even the recovery of the arms and ammunitions was not in accordance with law. In this connection learned counsel has placed reliance upon a decision of the Patna High Court in the case of Faujdari Mistry & Others Vs. The State of Bihar, reported in 2002(2) PLJR 545. However, I do not find force in this submission of the learned senior counsel, inasmuch as, Chapter V of the Cr.P.C., lay down the provisions for arrests and also the power of seizure of the offensive weapons from the arrested person or about his person, without any warrant. Similar powers of search and seizure are also available to a police officer under Sections 102 and 165 of the Cr.P.C. As such, in the facts of this case it cannot be said that the search and seizure made in this case were in contravention of the procedure laid down in the Cr.P.C. 10. Learned counsel for the State, on the other hand, has opposed the prayer submitting that there is direct allegation against the petitioner that arms and ammunitions recovered from the house of Bunty Jaiswal, were procured from the petitioner. Learned counsel has accordingly, submitted that the petitioner was aware of the fact that the arms and ammunitions were kept at the premises, from where they were recovered and accordingly, the case of the petitioner comes within the purview of Section 35 of the Arms Act. Learned counsel, however, very fairly conceded that it is not the prosecution case that the premises, from where the arms and ammunitions were recovered, was in joint occupation or control of the petitioner also, and there is nothing on the record to support this fact. 11. After having heard the learned counsels for both the sides and upon going through the record, I find that the only material against the petitioner is that large number of prohibited arms and ammunitions were recovered from the rented house of co-accused Bunti Jaiswal. Said Banti Jaiswal and other co-accused, who were apprehended in connection with this case, made the disclosure to the effect that they were working for the petitioner, who is a convicted accused and on his direction, several offences of murder and 6 shoot out of firearms were done in the town. This apart, their confessional statements also disclosed that arms and ammunitions seized from the rented premises of co-accused, Bunti Jaiswal, were kept by co-accused Lallu @ Manoranjan Singh, who had procured them from the petitioner. There is nothing in the FIR, or the confessional statement of the Co-accused Bunty Jaiswal, or his statement recorded under Section 164 of the Cr.P.C., to show that the said premises was ever in the joint occupation or joint control of this petitioner also, nor this is the case of the prosecution. 12. Section 35 of the Arms Act reads as follows :- “35. Criminal responsibility of persons in occupation of premises in certain cases.- Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone”. 13. A plain reading of Section 35 would show that there are two essentials ingredients for making a person liable for the offences under the Arms Act, in the same manner as if it had been or being committed by him alone, with the help of Section 35 of the said Act, which are as follows:- (a) arms and ammunitions in respect of which any offence under this Act has been or is being committed, should be found in any premises, vehicle, or other place in joint occupation or under the joint control of several persons; and (b) there should be reason to believe that such person was aware of the existence of the arms and ammunitions in the premises, vehicle or other place, unless the contrary is proved. Thus, it is evident from the plain reading of this section that the question of being aware of existence of arms and ammunitions in the premises from where they had been recovered, comes for consideration only when it is alleged that the said premises was in joint occupation or under the joint control of such person. If there is nothing on the record to suggest that the premises, vehicle or place where the recovery was made, was in joint possession or joint control of such person, the question of second ingredient, i.e., awareness of existence of arms and ammunitions in the premises, vehicle or place, does not come into picture at all. This clearly leads to the conclusion that if there is nothing to show that the person was in joint occupation or joint control over the premises, vehicle or place from where the recovery of the arms and ammunition was made, he cannot be made liable for the offences under the Arms Act with the 7 help of Section 35 of the said Act, even if he was aware of the existence of the arms or ammunition at that premises, vehicle or place. I find sufficient force in the submission of the learned senior counsel for the petitioner that the very first ingredient is missing in the case of the petitioner and accordingly, no offence can be said to be made out against the petitioner under any of the provisions of the Arms Act, even though it is alleged that the petitioner was aware of the existence of the arms at that particular premises. 14. The impugned order clearly shows that the application of the petitioner filed under Section 227 of the Cr.P.C., has been rejected only on the ground that the petitioner was aware of the existence of the arms and ammunition from where they were recovered. Even the Court below has found from the materials on record that the petitioner was not present at the time of recovery of the arms, and that the room from where the recovery was made, did not belong to the petitioner. I am of the considered view that the Court below has failed to take into consideration that the main ingredient of the offence under Section 35 of the Arms Act, that the premises, vehicle or place, from where the arms and ammunitions were recovered, should be in joint possession or joint control of the person charged with the offence, is absolutely lacking in the present case, and as such, no offence can be made out against the petitioner under the Arms Act. In my considered opinion, the impugned order cannot be sustained in the eyes of law, and is fit to be set aside. 15. In view of the aforementioned discussions, I also find that this is a fit case for exercise of the inherent powers of this Court under Section 482 of the Cr.P.C., as the continuance of the proceeding against the petitioner in S.T. No. 76A of 2009 shall be sheer abuse of the process of law. Accordingly, the impugned order dated 8.8.2012 passed by the learned Additional Sessions Judge-I, Jamshedpur, in Sessions Trial No. 76A of 2009, is hereby, set aside, and the entire proceeding against the petitioner in S.T. No. 76A of 2009 arising out of Golmuri P.S. Case No. 279 of 2008 corresponding to G.R. No.2507 of 2008, pending in the Court of Additional Sessions Judge-I, Jamshedpur, is hereby, quashed. This criminal revision application is, accordingly, allowed. R.Kr. ( H. C. Mishra, J.)